Robertson v Wegmann Certiorari

    (Slip Opinion)

NOTH: Where It Is feasible, a syllabus (headnote) will be re- 
leased, as is being done in connection with this case, at the time 
the opinion is issued. The syllabus constitutes no part of the opinion 
of the Court but has been prepared by the Reporter of Decisions for 
the convenience of the reader. See United States v. Detroit Lumber 
Co., 200 U.S. 321, 337.

SUPBEME COUBT OF THE UNITED STATES
Syllabus

ROBERTSON v. WEGMANN, EXECUTOR, et  a l .

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE
FIFTH CIRCUIT

No. 77-178. Argued March 21, 1978—Decided May 31, 1978

One Shaw filed an action for damages and injunctive relief under 42 
TJ. S. C. § 1983 against petitioner and others, claiming that they had 
deprived him of his constitutional rights. Upon the death of Shaw be­
fore trial, respondent executor of his estate was substituted as plaintiff. 
Petitioner and the other defendants filed a motion to dismiss on the 
ground that Shaw’s death abated the action. The District Court denied 
the motion. The court held that the applicable survivorship rule was 
governed by 42 U. S. C. § 1988, which provides that the jurisdiction 
conferred on district courts for the protection of civil rights shall be 
exercised conformably with federal laws so far as such laws are suitable 
“but in all cases where they . . . are deficient in the provisions neces­
sary to furnish suitable remedies . . . the common law, as modified 
and changed by the constitution and statutes of the [forum] State” 
shall apply as long as they are “not inconsistent with the Constitution 
and laws of the United States.” The court found the federal civil rights 
laws to be “ deficient in not providing for survival,” and then held that 
under Louisiana law an action like Shaw’s would survive only in favor 
of a spouse, children, parents, or siblings, none of whom was alive at 
the time of Shaw’s death, but refused to apply the state law, finding it 
inconsistent with federal law. In place of the state law the court 
created "a federal common law of survival in civil rights actions in 
favor of the personal representative of the deceased.” The Court of 
Appeals affirmed. Held: The District Court should have adopted the 
Louisiana survivorship law, which would have caused Shaw’s action to 
abate. Pp. 6-10.

(a) There is nothing in § 1983, despite its broad sweep, to indicate 
that a state law causing abatement of a particular action should in­
variably be ignored in favor of a rule of absolute survivorship. No 
claim is made that Louisiana’s survivorship laws do not in general com-

x



II ROBERTSON v. WEGMANN

Syllabus

port with the underlying policies of § 1983 or that Louisiana’s decision 
to restrict certain survivorship rights to the relations specified above is 
unreasonable. Pp. 6-7.

(b) The goal of compensating those injured by a deprivation of rights 
provides no basis for requiring compensation of one who is merely suing 
as decedent’s executor. And, given that most Louisiana actions survive 
the plaintiff’s death, the fact that a particular action might abate would 
not adversely affect § 1983’s role in preventing official illegality, at least 
in situations such as the one here where there is no claim that the 
illegality caused plaintiff’s death. P. 8.

545 F. 2d 980, reversed.

M a r sh all , J., delivered the opinion of the Court, in which B urger, 
C. J., and Stew art , P ow ell , R e h n q u ist , and Steven s , JJ., joined. 
B l a c k m u n ,, J., filed a dissenting opinion, in which B r e n n a n  and W h it e , 
JJ., joined.



NOTICE : This opinion is subject to formal revision before publication 
in the preliminary print of the United States Reports. Readers are re­
quested to notify the Reporter of Decisions, Supreme Court of the 
United States, Washington, D.C. 20543, of any typographical or other 
formal errors, in order that corrections may be made before the pre­
liminary print goes to press.

SUPKEME COURT OF THE UNITED STATES
No. 77-178

Willard E. Robertson, Petitioner,
v.

Edward F. Wegmann, Executor of 
the Estate of Clay L. Shaw, 

et a!.

On Writ of Certiorari to the 
United States Court of 
Appeals for the Fifth 
Circuit.

[M ay 31, 1978]

M r . J u s t ic e  M a r s h a l l  delivered the opinion of the Court.
In early 1970, Clay L. Shaw filed a civil rights action under 

42 U. S. C. § 1983 in the United States District Court for the 
Eastern District of Louisiana. Four years later, before trial 
had commenced, Shaw died. The question presented is 
whether the District Court was required to adopt as federal 
law a Louisiana survivorship statute, which would have caused 
this action to abate, or was free instead to create a federal 
common-law rule allowing the action to survive. Resolution 
of this question turns on whether the state statute is “ incon­
sistent with the Constitution and laws of the United States.” 
42 U. S. § 1988.1 1

1 Title 42 U. S. C. § 1988 provides in pertinent part:
“The jurisdiction in civil and criminal matters conferred on the district 

courts by the provisions of this chapter and Title 18, for the protection 
of all persons in the United States in their civil righte, and for their vin­
dication, shall be exercised and enforced in conformity with the laws of 
the United States, so far as such laws are suitable to carry the same into 
effect; but hi all cases where they are not adapted to the object, or are 
deficient in the provisions necessary to furnish suitable remedies and 
punish offenses against law, the common law, as modified and changed 
by the constitution and statutes of the State wherein the court having 
jurisdiction of such civil or criminal cause is held, so far as the same is



2 ROBERTSON v. WEGMANN

I
In 1969, Shaw was tried in a Louisiana state court on 

charges of having participated in a conspiracy to assassinate 
President John F. Kennedy. He was acquitted by a jury but 
within days was arrested on charges of having committed 
perjury in his testimony at the conspiracy trial. Alleging that 
these prosecutions were undertaken in bad faith, Shaw’s § 1983 
complaint named as defendants the then District Attorney of 
Orleans Parish, Jim Garrison, and five other persons, including 
petitioner Willard E. Robertson, who was alleged to have lent 
financial support to Garrison’s investigation of Shaw through 
an organization known as “ Truth and Consequences.” On 
Shaw’s application, the District Court enjoined prosecution of 
the perjury action, 328 F. Supp. 390 (ED  La. 1971), and the 
Court of Appeals affirmed, 467 F. 2d 113 (CA5 1972).2

Since Shaw had sought damages as well as an injunction, the 
parties continued with discovery after the injunction issued. 
Trial was set for November 1974, but in August 1974 Shaw 
died. The executor of his estate, respondent Edward F. 
Wegmann, moved to be substituted as plaintiff, and the 
District Court granted the motion.3 Petitioner and other

not inconsistent with the Constitution and laws of the United States, shall 
be extended to and govern the said courts in the trial and disposition 
of the cause, and, if it is of a criminal nature, in the infliction of pun­
ishment on the party found guilty.”

2 The Court of Appeals held that this Court’s decision in Younger v. 
Harris, 401 U. S. 37 (1971), did not bar the enjoining of the state per­
jury prosecution, since the District Court’s “ finding of a bad faith prosecu­
tion establishes irreparable injury both great and immediate for purposes 
of the comity restraints discussed in Younger.”  467 F. 2d, at 122.

3 See Fed. Rule Civ. Proc. 2 5 (a )(1 ). As the Court of Appeals ob­
served, this rule “ does not resolve the question [of] what law of survival 
of actions should be applied in this case. [It] simply describes the 
manner in which parties are to be substituted in federal court once it is 
determined that the applicable substantive law allows the action to survive 
a party’s death.” 545 F. 2d 980, 982 (CA5 1977) (emphasis in original).



ROBERTSON v. WEGMANN 3

defendants then moved to dismiss the action on the ground 
that it had abated on Shaw’s death.

The District Court denied the motion to dismiss. It began 
its analysis by referring to 42 U. S. C. § 1988; this statute 
provides that, when federal law is “ deficient” with regard to 
“ suitable remedies” in federal civil rights actions, federal 
courts are to be governed by

“ the common law, as modified and changed by the consti­
tution and statutes of the State wherein the court having 
jurisdiction of [the] civil . . . cause is held, so far as the 
same is not inconsistent with the Constitution and laws 
of the United States.”

The court found the federal civil rights laws to be “deficient 
in not providing for survival.”  391 F. Supp. 1353, 1361 (ED 
La. 1975). It then held that, under Louisiana law, an action 
like Shaw’s would survive only in favor of a spouse, children, 
parents, or siblings. Since no person with the requisite rela­
tionship to Shaw was alive at the time of his death, his action 
would have abated had state law been adopted as the federal 
rule. But the court refused to apply state law, finding it 
inconsistent with federal law, and in its place created “ a federal 
common law of survival in civil rights actions in favor of the 
personal representative of the deceased.” Id., at 1368.

On an interlocutory appeal taken pursuant to 28 U. S. C. 
§ 1292 (b), the United States Court of Appeals for the Fifth 
Circuit affirmed. The court first noted that all parties 
agreed that, “if Louisiana law applies, Shaw’s § 1983 claim 
abates.” 545 F. 2d 980, 982 (1977). Like the District Court, 
the Court of Appeals applied 42 U. S. C. § 1988, found federal 
law “deficient” with regard to survivorship, and held Louisiana 
law “ inconsistent with the broad remedial purposes embodied 
in the Civil Rights Acts.” 545 F. 2d, at 983. It offered a 
number of justifications for creating a federal common-law 
rule allowing respondent to continue Shaw’s action: such a 
rule would better further the policies underlying § 1983, 545



4 ROBERTSON v. WEGMANN

F. 2d, at 984-985; would “ foster[] the uniform application of 
the civil rights laws,” id., at 985; and would be consistent with 
“ [t]he marked tendency of the federal courts to allow actions 
to survive in other areas of particular federal concern,” id., at 
985. The court concluded that, “as a matter of federal com­
mon law, a § 1983 action instituted by a plaintiff prior to his 
death survives in favor of his estate.” 545 F. 2d, at 987.

We granted certiorari, ----- U. S. ----- (1977), and we now
reverse.

II
As both courts below held, and as both parties here have 

assumed, the decision as to the applicable survivorship rule is 
governed by 42 U. S. C. § 1988. This statute recognizes that 
in certain areas “ federal law is unsuited or insufficient 'to 
furnish suitable remedies’ ” ; federal law simply does not “cover 
every issue that may arise in the context of a federal civil 
rights action.” Moor v. County of Alameda, 411 U. S. 693, 
702, 703 (1973), quoting 42 U. S. C. § 1988. When federal 
law is thus “deficient,” § 1988 instructs us to turn to “ the 
common law, as modified and changed by the constitution and 
statutes of the [forum] State,” as long as these are “ not 
inconsistent with the Constitution and the laws of the United 
States.” See n. 1, supra. Regardless of the source of the law 
applied in a particular case, however, it is clear that the 
ultimate rule adopted under § 1988 “ ‘is a federal rule respon­
sive to the need whenever a federal right is impaired.’ ” 
Moor v. Comity of Alameda, supra, at 703, quoting Sullivan v. 
Little Hunting Park, 396 U. S, 229, 240 (I960).

As we noted in Moor v. County of Alameda, and as was 
recognized by both courts below, one specific area not covered 
by federal law is that relating to “ the survival of civil rights 
actions under § 1983 upon the death of either the plaintiff or 
defendant.” 411 U. S., at 702 n. 14.4 State statutes govem-

4 The dissenting opinion argues that, despite this lack of coverage, “ the 
laws of the United States” are not necessarily “ [un]suitable” or “deficient



ROBERTSON v. WEGMANN 5

ing the survival of state actions do exist, however. These 
statutes, which vary widely with regard to both the types of 
claims that survive and the parties as to whom survivorship is 
allowed, see W. Prosser, Handbook of the Law of Torts 900 
901 (4th ed. 1971), were intended to modify the simple, if 
harsh, 19th century common-law rule: “ [A ]n  injured party’s 
personal claim was [always] extinguished . . . upon the death 
of either the injured party himself or the alleged wrongdoer.” 
Moor v. County of Alameda, supra, at 702 n, 14; see Michigan 
Central Railroad Co. v. Vreel'and, 227 U. S. 59, 67 (1913). 
Under § 1988, this state statutory law, modifying the common 
law,5 provides the principal reference point in determining 
survival of civil rights actions, subject to the important proviso 
that state law may not be applied when it is “ inconsistent

in the provisions necessary.”  42 U. S. C. § 1988; see post, at 2. Both 
courts below found such a deficiency, however, and respondent here agrees 
with them. 545 F. 2d, at 983; 391 F. Supp., at 1358-1361; Brief for 
the Respondent 6.

There is a survivorship provision in 42 U. S. C. § 1986, but this statute 
applies only with regard to “ the wrongs . . . mentioned in [42 U. S. C.] 
section 1985.” Although Shaw’s complaint alleged causes of action under 
§§ 1985 and 1986, the District Court dismissed this part of the complaint 
for failure to state a 'claim upon which relief could be granted. 391 F. 
Supp. 1353, 1356, 1369-1371 (ED La. 1975). These dismissals were not 
challenged on the interlocutory appeal and are not at issue here.

5 Section 1988’s reference to “ the common law” might be interpreted as 
a reference to the decisional law of the forum state, or as a reference to 
the kind of general common law that was an established part of our 
federal jurisprudence by the time of § 1988’s passage in 1866, see Swift v. 
Tyson, 16 Pet. 1 (1842); cf. Moor v. County of Alameda, supra, 411 U. S., 
at 702 n. 14 (referring to the survivorship rule “at common law” ). The 
latter interpretation has received some judicial and scholarly support. See, 
e. g., Basista v. Weir, 340 F. 2d 74, 85-86, n. 10 (CA3 1965); Theis, Shaw 
v. Garrison: Some Observations on 42 U. S. C. § 1988 and Federal Com­
mon Law, 36 La. L. Rev. 681, 684-685 (1976). See also Carey v. Piphus, 
No. 76-1149, slip op., at 10 n. 13 (Mar. 21, 1978). It makes no difference 
for our purposes which interpretation is the correct one, because Louisiana 
has a survivorship statute that, under the terms of § 1988, plainly governs 
this case.



6 ROBERTSON v. WEGMANN

with the Constitution and laws of the United States.”  42 
U. S. C. § 1988. Because of this proviso, the courts below 
refused to adopt as federal law the Louisiana survivorship 
statute and in its place created a federal common-law rule.

Ill
In resolving questions of inconsistency between state and 

federal law raised under § 1988, courts must look not only at 
particular federal statutes and constitutional provisions, but 
also at “ the policies expressed in [them].” Sullivan v. Little 
Hunting Park, supra, 396 U. S., at 240; see Moor v. County of 
Alameda, supra, 411 U. S., at 703. Of particular importance 
is whether application of state lawT “ would be inconsistent with 
the federal policy underlying the cause of action under consid­
eration.” Johnson v. Railway Express Agency, Inc., 421 U. S. 
454, 465 (1975). The instant cause of action arises under 42 
U. S. C. § 1983, one of the “Reconstruction civil rights stat­
utes” that this Court has accorded “ ‘a sweep as broad as 
[their] language.’ ” Griffin v. Breckenridge, 403 U. S. 88, 97 
(1971), quoting United States v. Price, 383 U. S. 787, 801 
(1966).

Despite the broad sweep of § 1983, we can find nothing in 
the statute or its underlying policies to indicate that a state 
law causing abatement of a particular action should invariably 
be ignored in favor of a rule of absolute survivorship. The 
policies underlying § 1983 include compensation of persons 
injured by deprivation of federal rights and prevention of 
abuses of power by those acting under color of state law. See, 
e. g., Carey v. Piphus, No. 76-1149, slip op., at 7 (Mar. 21, 
1978); Mitchum  v. Foster, 407 U. S. 225, 238-242 (1972); 
Monroe v. Pape, 365 U. S. 167, 172-187 (1961). No claim is 
made here that Louisiana’s survivorship laws are in general 
inconsistent with these policies, and indeed most Louisiana 
actions survive the plaintiff’s death. See La. Code Civ. Proc. 
Art. 428; La. Civ. Code Art. 2315. Moreover, certain types of 
actions that would abate automatically on the plaintiff’s death



ROBERTSON v. WEGMANN 7

in many States— for example, actions for defamation and mali­
cious prosecution— would apparently survive in Louisiana.6 7 8 
In actions other than those for damage to property, however, 
Louisiana does not allow the deceased’s personal representative 
to be substituted as plaintiff; rather, the action survives only 
in favor of a spouse, children, parents, or siblings. See 391 P. 
Supp., at 1361-1363; La. Civ. Code Art. 2315 ; / .  Wilton Jones 
Co. v. Liberty Mutual Ins. Co., 248 So. 2d 878 (La. Ct. App.) 
(en banc).7 But surely few persons are not survived by one 
of these close relatives, and in any event no contention is made 
here that Louisiana’s decision to restrict certain survivorship 
rights in this manner is an unreasonable one.8

6 An action for defamation abates on the plaintiff’s death in the vast 
majority of States, see W. Prosser, Handbook of the Law of Torts 900-901 
(4th ed. 1971), and a large number of States also provide for abatement 
of malicious prosecution actions, see, e. g., Dean v. Shirer, 547 F. 2d 227, 
229-230 (CA4 1976) (South Carolina law ); Hall v. Wooten, 506 F. 2d 564, 
569 (CA6 1974) (Kentucky law). See also 391 F. Supp., at 1364 n. 17. 
In Louisiana, an action for defamation or malicious prosecution would 
apparently survive (assuming that one of the relatives specified in La. 
Civ. Code Art. 2315 survives the deceased, as discussed in text injra) ; such 
an action seems not to fall into the category of “strictly personal” actions, 
La. Code Civ. Proc. Art. 428, that automatically abate on the plaintiff’s 
death. See Johnson, Death on the Callais Coach: The Mystery of Louisi­
ana Wrongful Death and Survival Actions, 37 La.. L. Rev. 1, 6 n. 23, 52 
and n. 252 (1976). See also Official Revision Comment (c) to La. Code 
Civ. Proc. Art. 428.

7 For those actions that do not abate automatically on the plaintiff’s 
death, most States apparently allow the personal representative of the 
deceased to be substituted as plaintiff. See 391 F. Supp., at 1364, and 
n. 18.

8 The reasonableness of Louisiana’s approach is suggested by the fact 
that several federal statutes providing for survival take the same approach, 
limiting survival to specific named relatives. See, e. g., 33 U. S. C. 
§ 908 (d) (Longshoremen’s and Harbor Workers’ Compensation A ct); 45 
U. S. C. § 59 (Federal Employers’ Liability Act). The approach taken by 
federal statutes in other substantive areas cannot, of course, bind a federal 
court in a § 1983 action, nor does the fact that a state survivorship statute 
may be reasonable by itself resolve the question whether it is “ inconsistent



8 ROBERTSON v. WEGMANN

It is therefore difficult to see how any of § 1983’s policies 
would be undermined if Shaw’s action were to abate. The 
goal of compensating those injured by a deprivation of rights 
provides no basis for requiring compensation of one who is 
merely suing as the executor of the deceased’s estate.9 And, 
given that most Louisiana actions survive the plaintiff’s 
death, the fact that a particular action might abate surely 
would not adversely affect § 1983’s role in preventing official 
illegality, at least in situations in which there is no claim 
that the illegality caused the plaintiff’s death. A state offi­
cial contemplating illegal activity must always be prepared 
to face the prospect of a § 1983 action being filed against him. 
In light of this prospect, even an official aware of the intrica­
cies of Louisiana survivorship law would hardly be influenced 
in his behavior by its provisions.10

It is true that § 1983 provides “ a uniquely federal remedy 
against incursions under the claimed authority of state law 
upon rights secured by the Constitution and laws of the 
Nation.” Mitchum v. Foster, supra, 407 U. S., at 239. That 
a federal remedy should be available, however, does not mean 
that a § 1983 plaintiff (or his representative) must be allowed 
to continue an action in disregard of the state law to which 
§ 1988 refers us. A state statute cannot be considered “ incon­
sistent” with federal law merely because the statute causes 
the plaintiff to lose the litigation. If success of the § 1983

with the Constitution and laws of the United States.”  42 U. S. C. 
§ 1988.

9 This does not, of course, preclude survival of a § 1983 action when 
such is allowed by state law, see Moor v. County of Alameda, 411 U. S. 
693, 702-703, n. 14 (1973), nor does it preclude recovery by survivors who 
are suing under § 1983 for injury to their own interests.

10 In order to find even a marginal influence on behavior as a result of 
Louisiana’s survivorship provisions, one would have to make the rather 
far-fetched assumptions that a state official had both the desire and the 
ability deliberately to select as victims only those persons who would die 
before conclusion of the § 1983 suit (for reasons entirely unconnected with 
the official illegality) and who would not be survived by any close relatives.



ROBERTSON v. WEGMANN 9

action were the only benchmark, there would be no reason at 
all to look to state law, for the appropriate rule would then 
always be the one favoring the plaintiff, and its source would 
be essentially irrelevant. But § 1988 quite clearly instructs 
us to refer to state statutes; it does not say that state law is 
to be accepted or rejected based solely on which side is advan­
taged thereby. Under the circumstances presented here, the 
fact that Shaw was not survived by one of several close 
relatives should not itself be sufficient to cause the Louisiana 
survivorship provisions to be deemed “ inconsistent with the 
Constitution and laws of the United States.” 42 U. S. C. 
§ 1988.11

IV
Our holding today is a narrow one, limited to situations in 

which no claim is made that state law generally is inhospitable 
to survival of § 1983 actions and in which the particular 
application of state survivorship law, while it may cause 
abatement of the action, has no independent adverse effect on 
the policies underlying § 1983. A different situation might 11

11 In addition to referring to the policies underlying § 1983, the Court 
of Appeals based its decision in part on the desirability of uniformity in 
the application of the civil rights laws and on the fact that the federal 
courts have allowed survival “ in other areas of particular federal con­
cern . . . where statutory guidance on the matter is lacking.” 545 F. 2d, 
at 985; see p. 4, supra. With regard to the latter point, however, we do 
not find “statutory guidance . . . lacking” ; § 1988 instructs us to turn to 
state laws, unless an “inconsistency”  with federal law is found. While 
the courts below found such an inconsistency, we do not agree, as discussed 
in text supra, and hence the survivorship rules in areas where the courts 
are free to develop federal common law—without first referring to state 
law and finding an inconsistency—can have no bearing on our decision 
here. Similarly, whatever the value of nationwide uniformity in areas 
of civil rights enforcement where Congress has not spoken, in the areas 
to which § 1988 is applicable Congress has provided direction, indicating 
that state law will often provide the content of the federal remedial rule. 
This statutory reliance on state law obviously means that there will not be 
nationwide uniformity on these issues.



10 ROBERTSON v. WEGMANN

well be presented, as the District Court noted, if state law 
“ did not provide for survival of any tort actions,” 391 F. 
Supp., at 1363, or if it significantly restricted the types of 
actions that survive. Cf. Carey v. Piphus, supra, slip op., at 
11 (failure of common law to “recognize an analogous cause 
of action” is not sufficient reason to deny compensation to 
§ 1983 plaintiff). We intimate no view, moreover, about 
whether abatement based on state law could be allowed in a 
situation in which deprivation of federal rights caused death. 
See p. 8, and n. 10, supra; cf. Brazier v. Cherry, 293 F. 2d 401 
(CA5 1961) (deceased allegedly beaten to death by policemen; 
state survival law applied in favor of his widow and estate).

Here it is agreed that Shaw’s death was not caused by 
the deprivation of rights for which he sued under § 1983, and 
Louisiana law provides for the survival of most tort actions. 
Respondent’s only complaint about Louisiana law is that it 
would cause Shaw’s action to abate. We conclude that the 
mere fact of abatement of a particular lawsuit is not sufficient 
ground to declare state law “ inconsistent” with federal law.

Accordingly, the judgment of the Court of Appeals is
Reversed.



SUPREME COURT OF THE UNITED STATES
No. 77-178

Willard E, Robertson, Petitioner, 
v.

Edward F. Wegmann, Executor of 
the Estate of Clay L. Shaw, 

et al.

On Writ of Certiorari to the 
United States Court of 
Appeals for the Fifth 
Circuit.

[May 31, 1978]

M r . Ju stic e  B l a c k m u n , with whom M r . Ju s t ic e  B r e n n a n  
and M r . Ju s t ic e  W h it e  join, dissenting.

It is disturbing to see the Court, in this decision, although 
almost apologetically self-described as “a narrow one,” ante, 
p. 9, cut back on what is acknowledged, id., p. 6, to be the 
“broad sweep” of 42 U. S. C. § 1983. Accordingly, I dissent.

I do not read the emphasis of § 1988, as the Court does, 
ante, p. 1 and p. 9 n. 11, to the effect that the Federal District 
Court “ was required to adopt” the Louisiana statute, and was 
free to look to federal common law only as a secondary matter. 
It seems to me that this places the cart before the horse. 
Section 1988 requires the utilization of federal law ( “shall be 
exercised and enforced in conformity with the laws of the 
United States” ) . It authorizes resort to the state statute only 
if the federal laws “are not adapted to the object” of “protec­
tion of all persons in the United States in their civil rights, 
and for their vindication” or are “deficient in the provisions 
necessary to furnish suitable remedies and punish offenses 
against law.” Even then, state statutes are an alternative 
source of law only if “not inconsistent with the Constitution 
and laws of the United States.”  Surely, federal law is the rule 
and not the exception.

Accepting this as the proper starting point, it necessarily 
follows, it seems to me, that the judgment of the Court of



2 ROBERTSON v. WEGMANN

Appeals must be affirmed, not reversed. To be sure, survivor­
ship of a civil rights action under § 1983 upon the death of 
either party is not specifically covered by the federal statute. 
But that does not mean that “ the laws of the United States” 
are not “ suitable” or are “ not adapted to the object” or are 
“deficient in the provisions necessary.” The federal law and 
the underlying federal policy stand bright and clear. And in 
the light of that brightness and of that clarity, I see no need 
to resort to the myriad of state rules governing the survival 
of state actions.

First. In Sullivan v. Little Hunting Park, Inc., 396 U. S. 
229 (1969), a case that concerned the availability of com­
pensatory damages for a violation of § 1982, a remedial ques­
tion, as here, not governed explicitly by any federal statute 
other than § 1988, Mr. Justice Douglas, writing for the Court, 
painted with a broad brush the scope of the federal court’s 
choice-of-law authority:

“ [A ]s we read § 1988, . . . both federal and state rules on 
damages may be utilized, whichever better serves the 
policies expressed in the federal statutes. . . . The rule 
of damages, whether drawn from federal or state sources, 
is a federal rule responsive to the need whenever a federal 
right is impaired” (emphasis added). 396 U. S., at 240.

The Court’s present reading of § 1988 seems to me to be 
hyperlogical and sadly out of line with the precept set forth in 
that quoted material. The statute was intended to give courts 
flexibility to shape their procedures and remedies in accord 
with the underlying policies of the Civil Rights Acts, choosing 
whichever rule “ better serves” those policies (emphasis added). 
I do not understand the Court to deny a federal court’s 
authority under § 1988 to reject state law when, to apply it, 
seriously undermines substantial federal concerns. But I do 
not accept the Court’s apparent conclusion that, absent such 
an extreme inconsistency, § 1988 restricts courts to state law 
on matters of procedure and remedy. That conclusion too



ROBERTSON v. WEGMANN 3

often would interfere with the efficient redress of constitutional 
rights.

Second. The Court’s reading of § 1988 cannot easily be 
squared with its treatment of the problems of immunity and 
damages under the Civil Rights Acts. Only this Term, in
Carey v. Piphus,-----IT. S .------(1978), the Court set a rule for
the award of damages under § 1983 for deprivation of proce­
dural due process by resort to “ federal common law.” Though 
the case arose from Illinois, the Court did not feel compelled 
to inquire into Illinois’ statutory or decisional law of damages, 
nor to test that law for possible “inconsistency” with the 
federal scheme, before embracing a federal common-law rule. 
Instead, the Court fashioned a federal damages rule, from 
common law sources and its view of the type of injury, to 
govern such cases uniformly state-to-state. Carey v. Piphus, 
slip op., at pp. 10-12, and n. 13.

Similarly, in constructing immunities under § 1983, the 
Court has consistently relied on federal common-law rules. 
As Carey v. Piphus recognizes, slip op., at p. 10 n. 13, in 
attributing immunity to prosecutors, Imbler v. Pachtman, 424 
U. S. 409, 417-419 (1976); to judges Pierson v. Ray, 386 IT. S. 
547, 554-555 (1967); and to other officials, matters on which 
the language of § 1983 is silent, we have not felt bound by the 
tort immunities recognized in the particular forum State and, 
only after finding an “ inconsistency” with federal standards, 
then considered a uniform federal rule. Instead, the immu­
nities have been fashioned in light of historic common-law 
concerns and the policies of the Civil Rights Acts.1

1 Moor v. County of Alameda, 411 U. S. 693 (1973), is not to the con­
trary. There, the Court held that § 1988 does not permit the importation 
from state law of a new cause of action. In passing dictum, 411 U. S., 
at 702 n. 14, the Court noted the approach taken to the survival problem 
by several lower federal courts. In those cases, because the applicable 
state statute permitted survival, the lower courts had little occasion to 
consider the need for a uniform federal rule.



4 ROBERTSON v. WEGMANN

Third. A flexible reading of § 1988, permitting resort to a 
federal rule of survival beeause it "better serves” the policies 
of the Civil Rights Acts, would be consistent with the metho­
dology employed in the other major choice-of-law provision in 
the federal structure, namely, the Rules of Decision Act. 28 
U. S. C. § 1652.2 That Act provides that state law is to govern 
a civil trial in a federal court “except where the Constitution 
or treaties of the United States or Acts of Congress otherwise 
require or provide.” The exception has not been interpreted 
in a crabbed or wooden fashion, but, instead, has been used to 
give expression to important federal interests. Thus, for ex­
ample, the exception has been used to apply a federal common 
law of labor contracts in suits under § 301 (a) of the Labor 
Management Relations Act of 1947, 29 U. S. C. § 185 (a), 
Textile Workers Union v. Lincoln Mills, 353 U. S. 448 (1957) ; 
to apply federal common law to transactions in commercial 
paper issued by the United States where the United States is 
a party, Clearfield Trust Co. v. United States, 318 U. S. 363 
(1943); and to avoid application of governing state law to the 
reservation of mineral rights in a land acquisition agreement 
to which the United States was a party and that bore heavily 
upon a federal wildlife regulatory program, United States v. 
Little Lake Misere Land Co., 412 U. S. 580 (1973). See also 
Auto Workers v. Ho osier Cardinal Corp., 383 U. S. 696, 709 
(1966): “ [Sjtate law is applied [under the Rules of Decision 
Act] only because it supplements and fulfills federal policy, 
and the ultimate question is what federal policy requires.” 
( W h i t e , J., dissenting.)

Just as the Rules of Decision Act cases disregard state law 
where there is conflict with federal policy, even though no 
explicit conflict with the terms of a federal statute, so, too,

2 “The laws of the several states, except where the Constitution or 
treaties of the United States or Acts of Congress otherwise require or 
provide, shall be regarded as rules of decision in civil actions in the courts 
of the United States, in cases where they apply.”



ROBERTSON v. WEGMANN 5

state remedial and procedural law must be disregarded under 
§ 1988 where that law fails to give adequate expression to 
important federal concerns. See Sullivan v. Little Hunting 
Park, Inc., supra. The opponents of the 1866 Act were dis­
tinctly aware that the legislation that became § 1988 would 
give the federal courts power to shape federal common-law 
rules. See, for example; the protesting remarks of Congress­
man Kerr relative to § 3 of the 1866 Act (which contained 
the predecessor version of § 1988):

“I might go on and in this manner illustrate the practical 
working of this extraordinary measure. . . . i[T]he 
authors of this bill feared, very properly too, that the 
system of laws heretofore administered in the Federal 
courts might fail to supply any precedent to guide the 
courts in the enforcement of the strange provisions of 
this bill, and not to be thwarted by this difficulty, they 
confer upon the courts the power of judicial legislation, 
the power to make such other laws as they may think 
necessary. Such is the practical effect of the last clause 
of the third section [of § 1988] . . . .  That is to say, 
the Federal courts may, in such cases, make such rules 
and apply such law as they please, and call it common 
law”  (emphasis in original). Cong. Globe, 39th Cong., 
1st Seas., 1271 (1866).

Fourth. Section 1983’s critical concerns are compensation 
of the victims of unconstitutional action, and deterrence of 
like misconduct in the future. Any crabbed rule of survivor­
ship obviously interferes directly with the second critical in­
terest and may well interfere with the first.

The unsuitability of Louisiana’s law is shown by the very 
case at hand. It will happen not infrequently that a dece­
dent’s only survivor or survivors are nonrelatives or collateral 
relatives who do not fit within the four named classes of 
Louisiana statutory survivors. Though the Court surmises, 
ante, p. 7, that “surely few persons are not survived” by a



6 ROBERTSON v. WEGMANN

spouse, children, parents, or siblings, any lawyer who has 
had experience in estate planning or in probating estates 
knows that that situation is frequently encountered. The 
Louisiana survivorship rule applies no matter how malicious 
or ill-intentioned a defendant’s action was. In this case, as 
the Court acknowledges, id., at 2 n. 2, the District Court 
found that defendant Garrison brought state perjury charges 
against plaintiff Shaw “ in bad faith and for purposes of 
harassment,” 328 F. Supp. 390, 400, a finding that the Court 
of Appeals affirmed as not clearly erroneous. 467 F. 2d 113, 
122. The federal interest in specific deterrence, when there 
was malicious intention to deprive a person of his constitu­
tional rights, is particularly strong, as Cary v. Piphus inti­
mates, slip op., at pp. 9^10, n. 11. Insuring'a specific de­
terrent under federal law gains importance from the very 
premise of the Civil Rights Act that state tort policy often 
is inadequate to deter violations of the constitutional rights 
of disfavored groups.

The Louisiana rule requiring abatement appears to apply 
even where the death was intentional and caused, say, by a 
beating delivered by a defendant. The Court does not deny 
this result, merely declaiming, ante, p. 10, that in such a case 
it might reconsider the applicability of the Louisiana survivor­
ship statute. But the Court does not explain how either 
certainty or federalism is served by such a variegated appli­
cation of the Louisiana statute, nor how an abatement rule 
would be workable when made to depend on a fact of causation 
often requiring an entire trial to prove.

It makes no sense to me to make even a passing reference, 
id., at 8, to behavioral influence. The Court opines that no 
official aware of the intricacies of Louisiana survivorship law 
would “ be influenced in his behavior by its provisions.” But 
the defendants in Shaw’s litigation obviously have been 
“sweating it out” through the several years of proceedings



ROBERTSON v. WEGMANN 7

and litigation in this case. One can imagine the relief oc­
casioned when the realization dawned that Shaw’s death 
might— just might— abate the action. To that extent, the 
deterrent against behavior such as that attributed to the de­
fendants in this case surely has been lessened.

As to compensation, it is no answer to intimate, as the Court 
does, ibid., that Shaw’s particular survivors were not person­
ally injured, for obviously had Shaw been survived by parents 
or siblings, the cause of action would exist despite the absence 
in them of so deep and personal an affront, or any at all, as 
Shaw himself was alleged to have sustained. The Court pro­
pounds the unreasoned conclusion, ibid., that the “ goal of 
compensating those injured by a deprivation of rights pro­
vides no basis for requiring compensation of one who is merely 
suing as the executor of the deceased’s estate.” But the 
Court does not purport to explain why it is consistent with 
the purposes of § 1983 to recognize a derivative or independ­
ent interest in a brother or parent, while denying similar inter­
est to a nephew, grandparent, or legatee.

Fifth. The Court regards the Louisiana system’s structur­
ing of survivorship rights as not unreasonable. Ante, p. 7. 
The observation, of course, is a gratuitous one, for as the 
Court immediately observes, id., n. 8, it does not resolve 
the issue that confronts us here. We are not concerned with 
the reasonableness of the Louisiana survivorship statute in 
allocating tort recoveries. We are concerned with its applica­
tion in the face of a claim of civil rights guaranteed the 
decedent by federal law. Similarly, the Court’s observation 
that the Longshoremen’s and Harbor Workers’ Compensation 
Act, 33 U. S. C. § 908 (d), 909 (d) (1970 ed., Supp. V ), and 
Federal Employers’ Liability Act, 45 U. S. C. § 59, limit 
survival to specific named relatives or dependents (albeit a 
larger class of survivors than the Louisiana statute allows) is 
gratuitous. Those statutes have as their main purpose loss-



8 ROBERTSON v. WEGMANN

shifting and compensation, rather than deterrence of unconsti­
tutional conduct. And, although the Court does not mention 
it, any reference to the survival rule provided in 42 U. S. C. 
§ 1986 governing that statute’s principle of vicarious liability, 
would be off-point. There it was the extraordinary character 
of the liability created by § 1986, of failing to prevent wrongful 
acts, that apparently induced Congress to limit recovery to 
widows or next-of-kin in a specified amount of statutory 
damages. Cf. Cong. Globe, 42d Cong., 1st Sess., 749-752, 
756-763 (1871); Moor v. County of Alameda, 411 U. S., at 710 
n. 26.

The Court acknowledges, ante, p. 6, “ the broad sweep of 
§ 1983,” but seeks to justify the application of a rule of nonsur­
vivorship here because it feels that Louisiana is comparatively 
generous as to survivorship anyway. This grudging allowance 
of what the Louisiana statute does not give, just because it 
gives in part, seems to me to grind adversely against the 
statute’s “broad sweep.” Would the Court’s decision be other­
wise if actions for defamation and malicious prosecution in 
fact did not survive at all in Louisiana? The Court by 
omission admits, ante, p. 7, and n. 6, that that question of 
survival has not been litigated in Louisiana. See Johnson, 
Death on the Callais Coach: The Mystery of Louisiana 
Wrongful Death and Survival Actions, 37 La. L. Rev. 1, 6 n. 23 
(1976). Defamation and malicious prosecution actions wholly 
abate upon the death of the plaintiff in a large number of 
States, see ante, p. 7, and n. 6. Does it make sense to apply a 
federal rule of survivorship in those States while preserving a 
different state rule, stingier than the federal rule, in Louisiana?

Sixth. A federal rule of survivorship allows uniformity and 
counsel immediately know the answer. Litigants identically 
aggrieved in their federal civil rights, residing in geographically 
adjacent States, will not have differing results due to the 
vagaries of state law. Litigants need not engage in uncertain 
characterization of a § 1983 action in terms of its nearest tort 
cousin, a questionable procedure to begin with, since the



ROBERTSON v. WEGMANN 9

interests protected by tort law and constitutional law may be 
quite different. Nor will federal rights depend on the arcane 
intricacies of state survival law— which differs in Louisiana 
according to whether the right is “strictly personal,” La. Civ. 
Proc. Art. 428; whether the action concerns property damage, 
La. Civ. Code Art. 2315, para. 2; or concerns “ other damages,” 
id., para. 3. See 37 La. L. Rev., at 52.

The policies favoring so-called “ absolute” survivorship, viz, 
survivorship in favor of a decedent’s nonrelated legatees in 
the absence o f familial legatees, are the simple goals of 
uniformity, deterrence, and perhaps compensation. A defend­
ant who has violated someone’s constitutional rights has no 
legitimate interest in a windfall release upon the death of the 
victim. A plaintiff’s interest in certainty, in an equal remedy, 
and in deterrence support such an absolute rule. I regard as 
unanswered the justifications advanced by the District Court 
and the Court of Appeals: uniformity of decisions and fulfill­
ment of the great purposes of § 1983. 391 Supp., at 1359, 
1363-1365; 545 F. 2d, at 983.

Seventh. Rejecting Louisiana’s survivorship limitations does 
not mean that state procedure and state remedies will cease to 
serve as important sources of civil rights law. State law, for 
instance, may well be a suitable source of statutes of limita­
tion, since that is a rule for which litigants prudently can plan. 
Rejecting Louisiana’s survivorship limitations means only that 
state rules are subject to some scrutiny for suitability. Here 
the deterrent purpose of § 1983 is disserved by Louisiana’s rule 
of abatement.

It is unfortunate that the Court restricts the reach of § 1983 
by today’s decision construing § 1988. Congress now must act 
again if the gap in remedy is to be filled.